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September 22, 2006

Yesterday’s agreement between Senators McCain, Warner and Graham and the White House made clear that there remains a floor – the humane treatment standards of Common Article 3 of the Geneva Conventions – beneath which the Administration cannot go, and also specified that serious violations are war crimes. But Human Rights First has serious concerns about the following provisions:

Stripping of Judicial Oversight – The agreement purports to prevent the federal courts from reviewing claims of Geneva Convention violations either in a habeas corpus proceeding or in a civil lawsuit. The effect of this provision would be to permit the executive branch’s interpretation and application of the Geneva Conventions to stand without review. Secret detentions without judicial oversight invite abuses. And if there is no forum in which abuses can be exposed, then the force of the clear prohibition against inhumane treatment will be undermined. Habeas is a cornerstone of the American legal system and neither it, nor the ability of the courts to hear any claims of Geneva Convention violations, should be stripped.

Scope of War Crimes Act Narrowed – The language in the agreement clearly contemplates that “alternative interrogation procedures” the Administration sought to preserve, such as stress positions, induced hypothermia and waterboarding are not only prohibited by the treaty, they are war crimes. Nevertheless, the agreement also includes amendments to the War Crimes Act that narrow the scope of conduct punishable as a war crime. In its original proposals, the Administration had sought to exclude cruel or inhuman treatment from the list of violations punishable as war crimes under U.S. law. Instead, the deal would criminalize “serious” acts of cruelty below the level of torture. While the deal is an improvement from the Administration’s original proposal, it has implications beyond those of criminal liability of U.S. personnel. The deal also would limit the ability of the United States to bring to justice an enemy who abuses captive U.S. soldiers. The War Crimes Act was enacted a decade ago to ensure that those who commit war crimes against U.S. personnel can be brought to justice before U.S. courts.

Admissibility of Evidence Obtained through Coercion – Human Rights First believes that evidence obtained through coercion should not be admitted in any legal proceeding in U.S. courts or tribunals. The Administration originally sought to permit evidence obtained through coercion as long as a military judge found it probative and reliable. The agreement limits the Administration’s request and admits such evidence only if it was obtained prior to the Detainee Treatment Act of 2005. Allegedly coerced evidence obtained after passage of the Detainee Treatment Act has further limitations: not only must a judge find it reliable, probative, and serving the interests of justice, but the evidence may not have been obtained through techniques that violate the U.S. Constitution’s prohibitions against cruel, unusual or inhuman treatment. Although these provisions are an improvement over the Administration’s original request to Congress, admission of evidence obtained through coercion negatively impacts the integrity of the judicial process and is, as the Supreme Court has said, “constitutionally obnoxious.” Rochin v. California, 342 U.S. 165, 173 (1952).

Denial of evidence to accused – The Administration’s original military commissions proposal sought to deny an accused access to evidence that could be deemed classified and would have excluded the accused from portions of his own trial. The agreement denies the broad exclusion provisions the Administration requested. Nonetheless, serious concerns remain about the agreement’s provisions, which would permit the introduction of classified evidence against the accused even if the accused has not had the opportunity to review and challenge the “sources, methods, or activities” by which the government acquired the evidence. Human Rights First is particularly troubled by a provision in the agreement that would restrict full disclosure to the accused of exculpatory evidence – evidence that would tend to prove the accused’s innocence. These provisions would severely compromise the ability of defense counsel to prepare a case, and the ability of the accused to participate in his own defense.

Executive Authority – The Agreement grants the President the authority to interpret “the meaning and application of the Geneva Conventions” and requires him to publish any such interpretations, including interpretations of Geneva Convention violations that are not “grave breaches” of the Geneva Conventions. The requirement that the President publicly issue the Executive Branch’s interpretations of Geneva Convention obligations is a welcome return to a system of known and transparent law and legal interpretation. One key question, however, is whether the Administration’s interpretation of Geneva standards following this agreement will comport with long-standing Congressional and Judicial interpretations of the laws governing detainee interrogation and detention.

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